Thursday, September 10, 2015

Wright and Ginsburg Respond to the Canadian Competition Bureau's Draft Updated IP Guidelines

I mentioned a couple of weeks ago that Canada's Competition Bureau recently published Draft IP Enforcement Guidelines, available here, that addressed (among other things) SEPs, FRAND, and settlement of pharmaceutical patent disputes.  Unfortunately, I learned of the draft only after the time for submitting comments had passed.  Former FTC Commissioner Joshua Wright and U.S. Circuit Judge Douglas Ginsburg, however, submitted comments which are now available on ssrn, here.  Here is the abstract:
This comment is submitted in response to the Canadian Competition Bureau’s (the Bureau’s) draft stage 2 update of its Intellectual Property Enforcement Guidelines (Draft Updated Guidelines). This comment addresses five issues in the Draft Updated Guidelines: (1) product switching in the context of pharmaceutical patents; (2) settlement of patent infringement litigation between competitors, commonly referred to as “reverse-payment settlements”; (3) deceptive failure to disclose patents essential to a standard, commonly referred to as “patent ambush”; (4) reneging on a commitment to license a standard-essential patent (SEP) on fair, reasonable, and nondiscriminatory (FRAND) terms; and (5) seeking injunctive relief against infringement of a FRAND-encumbered SEP.
I've only taken a quick look at the comments, but the section on SEP and FRAND is consistent with the authors' view, as expressed in their comments to the Japan Fair Trade Commission's proposed FRAND policy (which I mentioned here), that antitrust is not the optimal tool for addressing FRAND/SEP issues.

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